WITHERS v. MILBANK, 67 Or. App. 475 (1984)

678 P.2d 770

A8212-07593; CA A29162Oregon Court of Appeals.Argued and submitted February 3, 1984
Affirmed March 21, 1984

Appeal from Circuit Court, Multnomah County.

Charles S. Crookham, Judge.

John E. Magee, Portland, argued the cause for appellant. With him on the brief was Marvin S. Nepom, Portland.

Vicki Hopman Yates, Portland, argued the cause for respondent. With her on the brief was Landis, Aebi Bailey, P.C., Portland.

Before Buttler, Presiding Judge, and Warren and Rossman, Judges.

ROSSMAN, J.

Affirmed.

Page 476

Page 477

ROSSMAN, J.

Plaintiff appeals the dismissal with prejudice of his legal malpractice action against defendant. We affirm.

In early 1972, while acting as plaintiff’s attorney, defendant prepared an antenuptial agreement. The agreement was signed by plaintiff and his intended wife on April 29, 1972. The couple was married the following day. In September, 1979, plaintiff’s wife initiated dissolution proceedings. A decree was entered in August, 1982, providing for certain payments to be made by plaintiff to his former wife and for a division of the parties’ property.

Contrary to what plaintiff alleges was its intended purpose, the antenuptial agreement was drafted so that it only covered what would happen to the parties’ assets in the event of death. It did not provide for the contingency of divorce. Because of that omission, plaintiff filed a legal malpractice action in December, 1982, alleging that defendant’s negligent drafting of the antenuptial agreement had caused him damage in the amount of $290,000. Defendant moved to dismiss the complaint on the grounds that the action was barred by the statute of ultimate repose, ORS 12.115(1) or, in the alternative, that the action was barred by the statute of limitations. ORS 12.110 (1). The trial judge granted the motion, dismissing plaintiff’s complaint with prejudice. Plaintiff claims that the dismissal with prejudice was error.

We are unable to determine whether the trial judge’s dismissal was based on ORS 12.110(1),[1] or 12.115(1), but we find that it was required by the latter. ORS 12.115(1) provides:

“In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.”

This statute was enacted in response to the “discovery rule” articulated in Berry v. Branner, 245 Or. 307, 421 P.2d 996
(1966). See Josephs v. Burns Bear, 260 Or. 493, 491 P.2d 203
(1971). In drafting ORS 12.115(1), the legislature considered

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the problem of long-delayed tort litigation brought about by delayed discovery and endeavored to prescribe an ultimate cutoff date beyond which a specific act or omission is no longer actionable. Josephs v. Burns Bear, supra. The cutoff was intended to occur “regardless of when the damage resulted or when the act or omission was discovered.” 260 Or at 500.

ORS 12.115(1) has been held to apply to a wide range of tort actions. See, e.g., Johnson v. Star Machinery Co., 270 Or. 694, 530 P.2d 53 (1974). However, until now, no case has addressed whether it is applicable to suits based on alleged legal malpractice. There is no reason to treat legal malpractice actions differently than other types of negligence.

Affirmed.[2]

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